The Intellectual Property Office of New Zealand (IPONZ) recently completed a review of its practice of raising objections based on morality considerations, and has just released new guidelines that may cause difficulties for some biotechnology patent applications.
Section 17(1) of New Zealand Patents Act 1953 empowers the commissioner to refuse a patent application for an invention that is deemed to be contrary to morality. Traditionally, IPONZ would not allow patents for inventions that would be considered contrary to morality by New Zealand society as a whole. Objections were largely restricted to claims covering humans, parts of humans, or processes for the production of a human.
The recently published IPONZ practice provides, as a general guide, that an objection under section 17(1) is likely to arise for any claim directed to human beings, processes which give rise to human beings and biological processes for their production, methods of cloning human beings, totipotent human stem cells, human embryos and processes requiring their use, placental and umbilical cord tissues and processes requiring the use of placental and umbilical cord tissues, transformed host cells within a human, and other cells and tissues within a human.
IPONZ has broadened the ambit of what is contrary to morality by stating that it will raise an objection under section 17(1) where the use of an invention would be contrary to not only New Zealand society as a whole, but to what is termed a "significant section of the community", including Maori (the indigenous population of New Zealand).
Most commentators agree that decisions based on morality should not be based solely on what some members of public may find objectionable, but rather should involve a detailed analysis of any effect on human health, any economic impact, any environmental issues and prevailing opinions of the population as a whole. It appears that the new IPONZ practice, which considers what may be viewed as offensive to a subset of the population, lowers the threshold of what is considered contrary to morality.
IPONZ has also stated that consideration of the content of a draft Patents Bill, which is waiting to be introduced into the New Zealand Parliament, is appropriate in setting its new practice. This statement may cause some controversy as many will view IPONZ as pre-empting legislation not yet passed by Parliament.
The new IPONZ practice may concern those in the biotech industry. Further ambiguity in respect of morality objections has been created, rather than legal certainty.
 |
|
 |
| Greg Lynch and Shelley Rowland |
Baldwins
Level 14, Baldwins Centre
342 Lambton Quay
Wellington
New Zealand
Tel: +64 4 472 1094
Fax: +64 4 473 6712
enquiries@baldwins.com
www.baldwins.com
